Long before Robert Bork or Edwin Meese made such arguments, John Marshall’s Dartmouth College v. Woodward opinion advanced a principled originalism.
Two giants of the intellectual right died last year, Robert Bork and James Buchanan. The first will be forever identified with originalism and the second with public choice. The Law & Economics Center of George Mason Law School invited me and other scholars to commemorate their work and that of Armen Alchian, a fine economist and price theorist who also died in 2013.
Thinking about the contributions of Judge Bork and Professor Buchanan together helped me understand the strong relationship between the rise of public choice and rise of originalism. The public choice view provided support for a constitution with features that constrain ordinary politics, protecting key social institutions like rights, federalism and the separation of powers. Originalism provided a theory of interpretation that supports these constraints on democratic politics, preventing them from being eroded by the forces that would favor their erosion, according to the predictions of public choice itself. I thus decided to write about the relation in essay called: Public Choice Originalism: Bork, Buchanan and the Escape from the Progressive Paradigm.
Here is a bit from the introduction of the paper:
In this essay I explore the connections between public choice and originalism, arguing that public choice is crucial to development of the originalism both in its diffuse popular and more academic form. As Robert Bork’s famous article, Neutral Principles and Some First Amendment Problems, illustrates, originalism begins as a reaction to the Warren Court, but it is a reaction that largely accepts the primacy of democratic majoritarianism that had begun in the Progressive era. It is public choice more than any other theory of politics that loosens the straightjacket that majoritarianism has on constitutional theory. In its more diffuse form, public choice with its emphasis on the self- interested nature of politicians, the power of interest groups, and the pathologies of collective choice made majority rule less attractive. James Buchanan’s contribution with Gordon Tullock in The Calculus of Consent has particular relevance to originalism, because it decisively breaks from the idea that majority rule should be the presumptive norm in constitutional republics. If constitutions are best made by supermajority rules, as Buchanan and Tullock imply, originalism can be justified as a way of protecting the results of supermajoritarian constitutionmaking from change by either majorities or the peculiar submajorities that are comprised by the justices of the Supreme Court.
In particular, public choice is largely responsible for moving the countermajoritarian difficulty, which dominated constitutional law for decades, from the center of constitutional theory except for many of those on the left-liberal side who remain committed to the Progressive Paradigm. If majority rule is not a privileged norm, enforcing countermajoritarian aspects of the constitution are not only unproblematic but in fact an essential aspect of constitutionalism. And thus many of the moves in constitutional theory that have been devised to meet or temper the countermajoritarian difficulty are solutions in search of a problem.
But every theory has problems it needs to solve. In my next post, I will outline four issues that an originalism informed by public choice needs to address.